Helen McEntee (Meath East, Fine Gael) | Oireachtas source

I move: "That the Bill be now read a Second Time."

I am delighted to open the debate and the deliberations of the House on the Judicial Appointments Commission Bill 2022. The proposals I am presenting in the Bill are transformative and I believe they will provide for deep and wide-ranging reform.

The reformed appointments system will be seen to clearly emphasise the principles of meritocracy and independence. It is designed to meet both our own constitutional standards and the standards set by the Court of Justice of the European Union, CJEU, regarding independence and the rule of law in judicial appointments. The overarching change is that all appointments to any court in the State will be based on recommendations from the new commission. The Government discretion to appoint will be from a limited choice of three candidates. This will be for every judicial office in the State, right up through the courts system to the office of the Chief Justice. Every judge wishing to be considered for appointment to a higher judicial office must apply to the commission. They cannot be appointed by the Government without a recommendation by the commission. Indeed, no one can be appointed a judge without applying to the commission and being recommended. In an important adjustment to the general scheme of the Bill, the Bill incorporates into the commission's remit recommendations for nominations by the Government to courts outside of the State and this includes the CJEU and the European Court of Human Rights, ECHR.

We should not take our strong record for judicial excellence and independence for granted. We are very well served by the Judiciary and we are fortunate in that regard. However, it is time to underpin that with a strengthened appointments system. Deputies will know how important it is to review and to strengthen the structure and organisation we have around the entire justice area. I am committed to that. This is just as much as the case when it comes to the central part played by our judges in every court in the State and where we are involved outside of the State. The approach that is being proposed by the Government will require interviews to be carried out and will make training and continuous professional development mandatory for those seeking to be appointed. This represents a significant limiting of the discretion that the Government will have. The Bill will also ensure that we will continue to have a strong, independent Judiciary in this country, which is a cornerstone of any liberal democracy.

We have moved on from the 2017 Bill, on which I believe this Bill is an improvement, on the basis of reforms which are required in the area of judicial appointments. Today's Bill, like previous Bills, is about setting up a new commission to replace the Judicial Appointments Advisory Board, JAAB, as well as to recommend persons for appointment as judges by the President on the advice of the Government under the Constitution. Unlike the earlier Bill, the 2022 Bill provides for a smaller nine-person commission, which I believe would be more effective than the earlier proposal of a 17-person commission. The remit of the commission is now wider, and the new process is substantially different from what had been planned previously, with the make-up of the commission very different. I will explain how I believe the outcome will be an improvement on the approach that had been previously envisaged.

As I set out the overall view of the Bill, I will focus on the adaptation of the general scheme where that is relevant.

Part 1 deals with interpretation, including some key definitions and other standard introductory matters. Part 2 is about the commission itself. Deputies will be aware that previous legislation, or certainly the debate on it, seemed at times to be very focused on the membership of the commission including, in particular, the balance of lay and judicial membership and the chairing arrangements. The programme for Government commitment to bring forward this reform was very clear. The new commission is to be chaired by the Chief Justice. The Chief Justice has chaired the JAAB for in the region of 25 years. I take this opportunity to thank the Chief Justice and his predecessors and all of their JAAB colleagues for all of their work over that period. One of the first requests I made, in looking at the older legislation, was that my Department look again at the composition of equivalent bodies internationally and consider what the European Commission and the Committee of Ministers at the Council of Europe were saying on this subject. Canada and its different provinces, for example, appear to me to be strong on representing particular lay interests and the Northern Ireland model provides guidance on the balance of lay and judicial involvement. Our 1995 Act provides for three lay members out of a total membership of ten and later, three out of 11 in total when the President of the Court of Appeal was added. Enhanced outside expertise, which can be provided through lay involvement, will be an important addition to the commission.

My conclusion is that an equivalent of judicial and lay members is best, with one of the judicial members being the Chief Justice, as chairperson, with the requirements for lay membership being as practical and flexible as needs be, as section 13 demonstrates. Court presidents, as required, should be members when the relevant recommendations are being made, with the President of the Court of Appeal being a permanent member. I note that the Oireachtas Committee stated that section 9(1) would operate as follows. When, for example, recommendations for appointment to the High Court are subject to the commission's deliberations, the President of the High Court will become a member of the commission instead, temporarily, of the President of the Court of Appeal, for that purpose. This is a common-sense approach.

Section 12 will provide for the nomination of two judicial members by the Judicial Council. The Bill provides for one male and one female judge. One of these judges will be a judge of the Supreme Court, Court of Appeal or High Court and one will be a judge of the Circuit or District Court. Of the two judges, one shall have been a practising barrister and one shall have been a practising solicitor at the time of their appointment as judges. The latter aspect will bring the understanding, knowledge and background of the relevant legal professions to the task of making informed recommendations when those judges are nominated by the council and appointed by the Minister to the commission. The Attorney General will be a non-voting member, bringing the total membership of the commission to nine.

On composition and gender balance, other than ex officiomembers, I have provided for a male and female nominee of the Judicial Council and section 13 provides that the selection criteria shall have regard to the need that recommendations for appointment by the Minister of the four lay members comprise an equal number of men and women as well as also reflecting the diversity of the population as a whole.

Under Part 2, I want to ensure that the commission has a particular obligation to set out its strategy for the achievement of the diversity objectives set out in section 39. In an addition to the general scheme, section 28 provides that the commission will publish a diversity statement not later than two years after the coming into operation of that section and thereafter at least once in every four-year period or less. The diversity statement shall include the procedures put in place to achieve the diversity objective, including how they will assist to remove barriers faced by persons who are under-represented in judicial office. I carefully considered the outcome of pre-legislative scrutiny in this matter. These sections of the Bill complement the commitments I have set out in Justice Plan 2022, which commits to bringing forward proposals to drive reform of legal education. These will include removing barriers to entering the legal profession, increasing diversity and introducing independent oversight of professional legal education for the first time.

Part 3 provides for a small supporting resource for the new commission - a director to be appointed by the Minister and staff. The director shall be responsible to the commission for the performance of his or her functions.

Part 4 in many ways is the pivotal set of provisions. The desired values we already associate with our Judiciary will only be reinforced under section 39. It provides that the decision by the commission to recommend a person must be based on merit. The recommendations made by the commission must have regard to essential requirements set out in the Bill. The most obvious ones, covered in section 40, concern basic eligibility concerning practice of the law and for appointments outside of the State, the criteria and requirements of the relevant institutions, conventions and available guidance. The recommended person must also have satisfied the commission that he or she possesses the relevant knowledge, skills and attributes set out in a judicial selection statement under Part 5. Critically too, subject to the merit stipulation in section 39, the commission must have regard to the objectives of having equal numbers of men and women judges in all courts, having a Judiciary reflective of the diversity of the people in our country and of meeting the need for the conduct of court proceedings in the Irish language.

Staying with Part 4, Deputies will know that currently - and historically - when an appointment of a serving judge to higher judicial office is made, it will not have come through the Judicial Appointments Advisory Board. The remit of the board under the Courts and Court Officers Act 1995, as amended, is restricted to persons seeking appointment for the first time as a judge. To illustrate, a judge appointed to the High Court some time in the past on a recommendation of the JAAB, were he or she interested in further appointment now to the Court of Appeal, would not be applying to JAAB, and that board would have no part in that further appointment. A real strength of the new process under the Bill and the commission is that there will be a single application stream for all applicants. To be clear, all those wishing to be considered for appointment to judicial office must make an application to the commission under section 43 and a recommendation can only be made to the Minister arising directly from such an application. An important element of section 43 is that an application can only be made pursuant to an invitation to make applications issued by the commission by way of advertisement under section 42.

We are also moving toward a more structured approach to appointments in another area. In a change from the general scheme, I am including in the remit of the commission the making of recommendations to the Minister for Justice or the Minister for Foreign Affairs of persons for nomination by the Government for appointment or election to judicial offices outside the State. The Bill will give the task of selecting and recommending persons for these roles in the Court of Justice and the General Court of the European Union, the European Court of Human Rights and the International Criminal Court to the new commission. I refer Deputies to sections 42(2) and section 48 which give the Minister for Foreign Affairs direct involvement in this. I want to acknowledge the very positive contributions to this part of the Bill made by the Minister for Foreign Affairs, Deputy Coveney, and his Department.

Part 4 also contains another fundamental reform. The position to date is that the appointment of judges, on advice to the President, is an executive function under the Constitution. That does not change, of course, but in section 51, I am providing for the first time in law that only recommended persons, that is, persons recommended by the commission, may be appointed to judicial office in the State. The same applies under section 52 to nominations to judicial office outside the State such as to the European Court of Human Rights and so on. The 1995 Act requires the Government to first consider recommendations made by the JAAB and it is an important change that Government may only appoint recommended persons. Since the foundation of the State, we have had a strong and independent Judiciary and by providing that only recommended persons can be appointed to judicial office, we will ensure that this continues to be the case while meeting our constitutional requirements.

This Bill proposes a change to the current JAAB procedure regarding the number of recommendations that the commission will make. I refer Deputies to sections 47 and 48. The Bill provides for three recommendations across all of the different judicial offices, all of those in the State as well as the Court of Justice, the European Court of Human Rights and the other international courts. Under the 1995 procedure, the JAAB process, which, as I said, is confined to only new appointments and only judicial offices in the State, it is a minimum of seven recommendations although in many instances, far more would be received. I am now proposing in this Bill to significantly limit the discretion which the Government of the day has in relation to selection and appointment of judges. Under the Bill the names of three persons will be recommended with an additional two for each additional vacancy in a court. If, for example, there are three appointments to be made to the High Court, we can expect seven names in total to be recommended. However, the Commission may recommend fewer than three persons in some circumstances, for example, where less than three eligible persons apply or where the commission cannot recommend three or cannot recommend the additional numbers for more than one vacancy.

The Minister will be informed of the names of all of those persons who have applied to the commission. The Government will not be able to appoint from a list of persons where there is no recommendation but I believe the Minister for Justice should have a clear picture of the interest there may be in a given role and an understanding of the diversity of persons making applications. Having reviewed the matter, I have decided that there is no necessity for a special top-level committee to advise the Government on the Chief Justice or any other of the highest ranking judicial positions. The commission will deal with all recommendations for all posts here or abroad, from the District Court right up to the top of the judicial system. This is the best approach.

There is an important commission function stipulated under Part 5, that of preparing and publishing a judicial selection statement. That statement will bring together both the selection procedures that the commission will use to select and recommend persons and the requisite skills, attributes and knowledge that the commission will adopt in determining those persons who are most suitable for appointment as judges.

The Bill makes particular provision to strengthen how courts are positioned to deal with the needs of those wishing to conduct their business in the Irish language. Under section 56, the commission shall consult the Courts Service about the needs of users of the courts with respect to proceedings being conducted in the Irish language and may request the Courts Service to produce a report in the matter.

The judicial selection statement must, in setting out the knowledge and skills required for judicial office, specify how these take account of the needs of such users of the courts.

Section 61 is a key provision. It requires the commission to monitor and review, among other things, the effectiveness of the procedures set out to achieve the objectives of gender balance and diversity among the Judiciary and Irish language needs in court proceedings, and to report to the Minister in the matter.

Other key reforms include that no person should be recommended without being interviewed, and section 46 provides accordingly. The Bill also sets out a requirement that those seeking appointment must have undergone continuing professional development education and training programmes. These are important changes.

Part 6, in section 63, expands eligibility for appointment so that for the first time service as a judge of the District Court will reckon as qualifying service for appointment as a judge of the High Court. For the first time, legal academics working in specified educational institutions will become eligible for appointment as a judge of any court, as will barristers in employment, that is, practising barristers as now to be defined for this purpose in line with the definition contained in the Legal Services Regulation Act 2015. The Bill also streamlines the process for assignments of District Court and Circuit Court judges in Part 6.

This reform is comprehensive and positive. I see it as a key element of overall judicial reforms, complementing what has been achieved under the Judicial Council Act 2019 and contributing to the modernisation of the courts system. It is, in fact, a complete overhaul of the system put in place in the law all of 27 years ago. The joint committee pre-legislative scrutiny deliberations and outcome were very helpful and constructive. I thank colleagues for this, including Deputy Lawless, the committee and other contributors.

Ongoing implementation of civil justice reforms, such as the work of the Judicial Council, an enhanced family justice court system and work being done in the area of judicial planning, will improve the efficiency and outcomes of the administration of justice in our courts in the time ahead of us. We are moving to introduce independent oversight of professional legal education for the first time, with a commitment to remove the barriers that exist for people who want to become solicitors and barristers. I will also shortly bring to Government an action plan to implement the 90 recommendations set out by the review group chaired Mr. Justice Peter Kelly to improve the civil justice system. The Government's action plan will commit to reform in all areas of civil justice, including litigation costs, case delays and access to services and legal aid, with our objective being to make the civil justice system more efficient and, most important, easier for people to access. Bringing the judicial appointment process up to date as part of these overall reforms and ensuring it is fit for purpose will make a real difference. I am looking forward to the contributions of colleagues in the course of our debate and will be very happy to deal with any aspect of this reform that Deputies wish to address today and subsequently in later debates. I commend the Bill to the House

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